Appeal from Circuit Court, Clackamas County. Dale Jacobs, Judge. No. 78836.
Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the briefs was Gary D. Babcock, Public Defender, Salem.
John W. Burgess, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Foley, Judge. Schwab, Chief Judge, and Thornton, Judge.
Defendant was charged with the crime of rape in the first degree. ORS 163.375. The indictment alleged that defendant committed the crime upon Olivia Gonzales, also known as Olivia Hodges, the nine-year-old daughter of defendant's wife. Defendant was found guilty by a jury of attempted rape in the first degree and received a 10-year sentence.
Defendant's first assignment of error is that the trial court erred in allowing witnesses to testify concerning certain statements made by defendant which referred to sexual misconduct with the sister of the prosecutrix. The facts pertinent to this assignment are as follows. Defendant was arrested by one Detective Worley. After advising defendant of his "Miranda"*fn1 rights, Detective Worley asked defendant if he had been involved sexually with the prosecutrix, Olivia. Worley stated defendant replied that approximately
"one week after Maria" (the sister of the prosecutrix, who shared her bedroom), he "did the same thing" to Olivia. Detective Worley then asked defendant if he had completed the act of sexual intercourse and defendant stated, "I don't know but I think I did get it in a little ways." Detective Worley was allowed to testify concerning this conversation, including the quoted portion which referred to Maria.
Following that conversation, Detective Worley and defendant went to the sheriff's office where they had a further conversation which was taken down in shorthand by a secretary and later transcribed. In that conversation defendant first told Detective Worley about his having had sexual contact with Maria. The statements (which related solely to his contact with Maria) were not put before the jury. However, the following portions of the transcribed statement were read to the jury:
"QUESTION: Now, approximately over a week after this incident with Maria were you involved in a similar situation with Olivia?
"ANSWER: I walked into the back room. There's a petitioned (sic) off area and we made a bedroom for the girls pretty close to the back door where I hang my coat and overalls after working. And Olivia called me and I went over and sat on the bed and she asked what I did to Maria, we call Chui, and I told her nothing and she said she told her about it. And I said told you what? She said, what you did. And she grabbed ahold of my pants and she said you put this in Maria. And she wanted me to do this to her. And this wasn't my idea. And she had her pants off before I went in there and I did it. The same thing I did to Maria.
"QUESTION: You did the same ...